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Thursday, August 05, 2010

What did Shadrake really say?

What did Shadrake really say?

I haven’t read the book. So, I think it would be really premature to judge on the contempt of court charges.

I have previously written about my views on criminal defamation. Looks like things are moving slowly on that front. But, it is really contempt of court where the action is at. As the law stands right now and as it has been interpreted by the Courts so far, contempt law would be based on English Common Law as it existed at the time that our Constitution was adopted.

If Shadrake avoided any allegation against the judiciary or if he refrained from imputing any wrongdoing or partiality on the part of the judiciary, the contempt charge may be difficult to make out. But, this is not entirely clear to me right now. It is entirely possible that the author might have taken a wild swing at the judiciary. That would be quite consistent with sensationalistic writing that some ‘investigative journalists’ are prone to and quite legitimately some of us would suspect that even Shadrake might have been guilty of. (Again, without reading the book I am really speculating here.)

For Shadrake to be on safe ground, the book must have referred to the cases in a factual reporting style and any allegation of unequal treatment under the law must have avoided allegations against the judiciary. Such a method of writing could have been accomplished without difficulty in relation the drug cases that Shadrake has reportedly addressed in his book. Based on Alex Au’s review of the book in his Yawning Bread blog, the following cases have been examined:

Vignes Mourthi case: The issue here appears to be evidence that was unavailable at the trial. Apparently, a key prosecution witness was involved in some impropriety and evidence of credibility of this witness was not available at the trial of Vigness Mourthi. I wouldn’t lay any blame on the judiciary. From my reading of the review by Alex Au, it doesn’t appear that Shadrake was blaming the judiciary.

Amara Tochi case: This case is more of an indictment of the reversal of the burden of proof in the Misuse of Drugs Act rather than an indictment of the judiciary. This is what opponents of the mandatory death penalty have been saying all along. The judge’s hands are tied. Once the presumption in the statute kicks in, it is virtually impossible for the Defendant to prove his position. Again, on the face of it, this case cannot possibly be an indictment of the judiciary.

Julia Bohl case: This is a trafficker against whom CNB appears to have had a good deal of evidence. However, in what is allegedly a deal between the German government and the Singapore government, the charge against Julia Bohl described a quantity of cannabis that was below the statutory presumption. Now, this is definitely a scandalous allegation. But, in any event, this is also not an allegation leveled against the judiciary. What has allegedly transpired could not be a stain on the judiciary.

I am not going into, and I should not go into (given the fact that I have not read the book), each of the other examples raised by Alex Au in his review of the book. A quick glance of each of the instances mentioned reveals that there may not have been any imputation against the judiciary to begin with in the book. This is something that I can ascertain for myself only if I read the book.

If the content of the book had the ‘inherent tendency’ to create prejudice, the contempt offence could be made out. The inherent tendency test is satisfied if a statement "conveys to an average reasonable reader allegations of bias, lack of impartiality, impropriety or any wrongdoing concerning a judge in the exercise of his judicial function." Whether any allegations were true is not an issue that can be raised as a defence. If Shadrake had merely dealt with individual cases by highlighting that different offenders were charged differently and this resulted in the inconsistent application of the death penalty, I don’t see how the contempt charge could be made out. It is, at most, an indictment of the law enforcement end of the system and in no way impugns the judiciary or its integrity.

Of course, the sneaking suspicion that I have is that somewhere along the way Shadrake might have made a sweeping statement that might have tied the judiciary to the inconsistency in the application of the death penalty. If he had done that, the contempt charge would be made out easily. This, I would not know until I have read the book.

Yes, you are right... Justification (or Truth) is not a defence to the Contempt of Court charge. Once it is proven that the statements have an inherent tendency to scandalise the judiciary, Shadrake cannot defend himself by proving that what he said was true. This is the way that the English Common law worked at the time that we became independant.

I am speculating on a different line... what if Shadrake did not in fact say anything about our judges. The cases that he has dealt with in his book don't involve judicial incompetence or misconduct. The judges were acting within the ambit of the law. If anything, Shadrake might have been alleging that prosecution was exercising discretion in different cases in a way that might amount to unequal treatment under the law.

If that was the case, the contempt charge can't even be made out as no reference would have been made to the judiciary as being culpable.

But, once there is some reference to judicial impropriety, you are right... it would be game over for Shadrake. Truth is not a defence. And that is the draconian aspect of this archaic law.

It served the British well during the imperial days. In a modern state it should only serve the function of maintaining respect for court orders and the orderly functioning of court proceedings.

I am just wondering when they say that the integrity of the judiciary must be protected, are they referring to the integrity of the judges only or whether the integrity of manipulative prosecutors equally needs to be protected ?

Makes a lot of difference between the two, isn't it ?

Especially when the Attorney-General can manipulated a lot of things behind the scene and then hide behind the integrity of the judiciary when their integrity is being called into question ?

About Me

I blog primarily about the law & politics in Singapore, occassionally veering off into socio-economic issues. Article 14 of the Singapore Constitution protects the Freedom of Speech, Expression,Peaceful Assembly and Association. But, there are excessive restrictions on these Freedoms. I hope that I can, in my small way, contribute to the gradual realisation of these Freedoms in our land